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United States v. Thomas ( 2021 )


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  • Case: 20-11183     Document: 00515923978         Page: 1     Date Filed: 07/02/2021
United States Court of Appeals
for the Fifth Circuit                            United States Court of Appeals
Fifth Circuit
FILED
July 2, 2021
No. 20-11183
Summary Calendar                      Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Calvin Wayne Thomas,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-125-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Calvin Wayne Thomas pleaded guilty to being a felon in possession of
a firearm. For the first time on appeal, he argues that
    18 U.S.C. § 922
    (g)(1)
is unconstitutional. The Government has filed an unopposed motion for
summary affirmance arguing that Thomas’s challenge is foreclosed by circuit
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-11183      Document: 00515923978           Page: 2   Date Filed: 07/02/2021
No. 20-11183
precedent or, alternatively, for an extension of time to file its brief on the
merits.
Summary affirmance is proper if “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as
to the outcome of the case.” Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    ,
1162 (5th Cir. 1969). Thomas’s argument that § 922(g)(1) is unconstitutional
because it exceeds the scope of Congress’s power under the Commerce
Clause is foreclosed. See United States v. Alcantar,
    733 F.3d 143
    , 145-46 (5th
Cir. 2013); United States v. Daugherty,
    264 F.3d 513
    , 518 (5th Cir. 2001);
United States v. De Leon,
    170 F.3d 494
    , 499 (5th Cir. 1999). He concedes as
much and raises the argument to preserve it for further review. Accordingly,
the Government’s motion for summary affirmance is GRANTED, the
alternative motion for an extension of time to file a brief is DENIED, and
the judgment of the district court is AFFIRMED.
2